ASYLUM AND EXTRADITION AS PER INTERNATIONAL LAW

I. INTRODUCTION: International Laws are the set of treaties, rules and agreements which are binding between the parties. To make the rules binding, the countries join together so that the citizens would get benefited. The Relationship between the requesting State and Territorial State are governed on the ground that, whether a person can be handed from one State to another. II. EXTRADITION: The word Extradition is derived from the Latin word “ex” meaning out and “tradition” meaning delivery of criminal. There are cases where, after committing crime in one State, the accused moves to another State. In this Process of Extradition, The Territorial State will surrender the person to the State where he has committed the crime. There is an another term for this process which is called as Redention , where the accused person is handed over to the State where he is alleged that crime is committed by him. III. PURPOSE OF EXTRADITION : The Purpose of Extradition is that : · The States will have mutual cooperation in prevention, control, domestic criminality and suppression of International Criminality. · To Reduce Crimes occurring in cross borders. · The process of extradition is done to fugitives so that they do not remain unpunished. · It has a deterrent effect towards punishment · The government can bring justice to their Country. · The Justice is quickly delivered to the Criminals. IV. DEFINITION: i) In the Indian Extradition Act, 1962 section 2(d) defines “ Extradition Treaty” as Agreement, Treaty or Arrangement made in India with a Foreign State, regarding Fugitive Criminals Extradition that has a extension and binding in India. The nature of Extradition Treaties is generally bilateral. ii) Oppenheim defines Extradition has “Extradition is the delivery of an accused or a convicted individual to the State where he is accused of or has been convicted of, a crime, by the State on whose territory he happens for the time to be”. V. CONDITIONS FOR GRANTING EXTRADITION: · The entire rules and conditions mentioned in the Extradition Treaty has to be followed · The formal Prayer is necessary in Extradition. · The Rule of Speciality and the Rule of Double Criminality are applicable. VI. PROCEDURE OF EXTRADITION IN INDIA: i) The Country or Interpol provides information about the fugitive criminals that are required by the foreign countries. ii) The concerned police department will receive information form the CBI Interpol Wing. iii) The immigration authorities will receive the information. iv) Finally, under the Indian Extradition Act, 1962 the action is taken. VII. PRINCIPLES OF EXTRADITION: 1. When a person commits a religious and military crime extradition is not allowed. 2. Time Barred Crimes: If the fugitive is already tried by the Territorial State, then fugitive cannot be surrendered by the territorial state. 3. Double Criminality: When the offence is related to jurisdiction of both States, then the Extradition is given. 4. The opportunity of fair trail must be given to accused. 5. The requested Country must note that, there was a prima facie allegation what was made against the offender. 6. The Extradition is only possible for the offences where the request is made for extradition. VIII. BARS FOR EXTRADITION: 1. Extradition cannot be provided when there is no Extradition treaty. 2. To refuse Extradition, jurisdiction over a crime can be invoked. 3. The Extradition can be refused in the requested State, when there is a possibility for the accused to providing torture or capital punishment in the Requesting State. 4. Extradition is refused when there is suspicion of political crimes. 5. If the Act committed is not a crime, then the Criminal Extradition cannot be granted in Requested State. IX. LEGAL STATUS OF EXTRADITION: · The law governing Extradition in India is Extradition Act, 1962. It has five chapters and two schedules. In order to make the Extradition Process smooth, the Indian Government has entered into Bilateral Extradition in 42 Countries. · In the Indian Extradition Act, 1962 section 2(d) defines “ Extradition Treaty” as Agreement, Treaty or Arrangement made in India with a Foreign State, regarding Fugitive Criminals Extradition that has a extension and binding in India. The nature of Extradition Treaties is generally bilateral. · When, India is considered one of the Countries that are treaty then it has the obligation to accept the request as there is treaty between 2 countries. When the treaty does not exist, in this case it is left to foreign country to either refuse or accept as the procedure would be according to the domestic law and procedure. The obligation is considered when there is a arrangement or treaty when India enters with different Countries. · When there is absence of international duty or treaty between the 2 sovereign States, the activity of Extradition is dependent on ideas of Comity and reciprocity that are considered to be the important principles of amicable cooperation between the nations or States. · According to Section 3 of Extradition Act, 1926, the notification can be issued by the government to the extent the act is notified to the Countries. The scope of Extradition offences are defined in this Act in the Section 2(c) and the persons who are capable to be extradited under Section 2(f). · According to the International Law, The State is not obliged to surrender the fugitive to other foreign State. · The Principle of Dual Criminality states that, after the scrutiny, the criminal act is considered as an offence in the both jurisdiction of foreign States. · The Principle of Proportional Punishment states that, when the extradited person has the chance to receive punishment out of proportion or serious when compared to the degree of the offense, then the Extradition can be refused in such cases. To avoid the human rights violation , this principle is utilized. In the requesting State when there is possibility of fugitive’s death, the request is denied according to this principle in order to avoid and protect Human Rights Violation norms. · The Principle of Specialty is used for preventing black extradition demand done by the Requesting State. The fugitive should be only tried for the offence he has committed not any other offense. In Daya Singh Lahoria v. Union of India case law, it was held that in India when the fugitive criminal was bought under Extradition treaty based on the Extradition decree only he can be tried but not on any other offences. X. CASES REALTED TO EXTRADITION: 1. Abu Salem’s Extradition Case Portugal and India do not have Extradition Treaty Other, after the Mumbai Blast, when Abu Salem fled to Portugal; Abu Salem was extradited by Portugal with his wife to India. 2. Factor v. Laubenheimer Case It is not considered universally that, there is non – existence of Extradition exception is under a treaty. Extradition is granted without treaty for some Countries. 3. Savarkar Case – 1911 B.D. Savarkar is an Indian Revolutionary, by a vessel she was bought to India. In the British India Court for Promotion of Crime and treason he was tried. Savarkar was caught by French police when escaped from the ship. To the captain of the British ship he was handed over. Later the British government was said by the French government to return him. In this case, the rules related to extradition were not followed properly. This case was handled in the Hague Court, in the favor of Britain the Verdict was passed. 4. Dharma Teja Case 1972 The Shipping Company’s director was Dharama Teja , in the Ivory Coast he was refugee. Because of the non – extradition treaty between Ivory Coast and India, the Ivory Coast did not return Dharma Teja . Later , he went to London and in India he was bought. He was sentenced in 1972. XI. ASYLUM: The meaning of Asylum means protection or active protection. To Political Refugees Asylum is provided. All States in the International system, accept to provide Asylum and not for extradition of political refugee. As per Article 14 of UDHR, the entire aggrieved person has the right for seeking another countries Asylum. Asylum is derived from the Latin word “Asylia” that means inviolable place. The immunity and protection is provided by the State to person from their home Country. XII. TYPES OF ASYLUM: i) Teritorrial Asylum : Asylum is provided in the territorial boundary of the State. All Foreign State, on its territory has the right to maintain and control the jurisdiction, hence based on the discretion the asylum or extradition can be granted. The State is given the territorial sovereignty above all its aliens and subjects. This asylum is provided to the individuals accused of political offences in their home country like espionage, sedition and treason. It is on the basis of national law of sovereign. ii) Extra – Territorial Asylum: This type of Asylum is provided by the State which is beyond the territory of the State the places that are not part of its physical territory. In this case , when the State grants asylum in the embassy that is in the foreign State it is called as Diplomatic Asylum. In Warships Asylee is provided Asylum as they are not allowed in the Foreign State Jurisdiction in whose water it will be operating. These Warships will be under the Flag State’s Patronage. This provision is not immune to Merchant Vessel. It is based on the International Law Convention’s framework. The Contemporary reasoning behind the Asylum is that Jurisdiction over a person ( Rationae Personae) and Jurisdiction over a subject matter ( Rationae Matertiae). A Sovereign State will get a right for excluding the interference or involvement by other sovereign over the territory. On the Territorial Asylum basis, the sovereignty principle is formed. And based on the nature of the principle, the extension is found to vessels, consulates, embassies, aircrafts belongs to the Sovereign State. The high Profile people like Edward Snowden and Julian Assange who seeked Asylum under Russia and Ecudor. Rationae Personae states that, some people because of the immunity provided to them because of their capacity or position are not in the State’s Jurisdiction Control which has exercised jurisdiction to them because of the territorial sovereignty. On a Certain Mission, to Government Officials, Diplomats and Head of the State, this form of special immunity is allowed. XIII. LEGAL STATUS OF ASYLUM : The International and National Law govern the Asylum. In India, the laws applicable to the Asylum seekers and non – refugees are The Foreigners Act, 1946, The Registration of Foreigners Act, 1939, Passport act, 1920 and the Foreigners Order, 1948. In any of the Asylum seekers , national laws and refugees in India, the term “ refugee” is not mentioned , they are based on the definition of “Foreigner” as a individual one who is non – Indian Citizen that are according to the laws that are mentioned above. The officials of Indian Government utilize these laws for dealing with intricacies that has aroused out of the Asylum Seekers and Refugees Entry of the Country. In India, as there is no specific asylum policy, the Government provides asylum on the basis of the case. In the 2015, the Congress MP Shashi Tharoor has given introduction to the Asylum Bill. Its motive is to grant a legal basis for issuing the Asylum in India. This Bill has the pendency and the Parliamentarians has to take up for evaluation and consideration. In the International Case, the laws that governs Asylum is the United Nations Refugee Convention of 1951, which has been provided a signature in Geneva and supplemented by the New York Protocol of 1967. XIV .CONCLUSION: For protecting the criminal justice there is a concept of Extradition. For securing the intention of the criminal Prosecution, the fugitive is bought from one State to another. Hence the two sovereign States gets the legal assistance based on Ad Hoc agreement or bilateral treaty agreement. Many times it is said that, the extradition starts when asylum ends. Extradition and Asylum are not identical; they differ in the functional and procedural aspects. XV. REFERENCES : 1) https://blog.ipleaders.in/extradition-asylum/ 2) https://blog.ipleaders.in/extradition-asylum/ 3)https://www.legalserviceindia.com/legal/article-2223-extradition-and-asylum-under-international-law.html 4) https://lawcorner.in/asylum-in-international-law/ 5) https://www.dhyeyaias.com/current-affairs/articles/international-law-on-extradition-and-asylum 6) https://byjus.com/free-ias-prep/extradition/ 7) https://www.drishtiias.com/daily-updates/daily-news-analysis/extradition-4 8) https://www.juscorpus.com/extradition-and-asylum/ 9) http://www.patnalawcollege.ac.in/notice/52679-international_law_4-converted.pdf An Article By M.S.Radhika

ASYLUM AND EXTRADITION AS PER INTERNATIONAL LAW